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Statements and opinions expressed in this publication are those of the authors and are not necessarily those of Lake Legal News or its staff.
Any advice contained within this publication is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law.
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owners. All submissions grant a right to Lake Legal News to edit said materials for accuracy, brevity, legality, or other concerns, and to title, caption, or
make editorial comment upon such materials. Persons submitting materials agree to hold the publisher and staff of Lake Legal News harmless against
claims of defamation, copyright infringement, invasion of privacy and unauthorized use of any person's name, photograph or personal information.

Looking back on nearly six years' worth of cover-articles and other main features,
it struck me how some ideas go immediately from mind-to-paper, while other
ideas need to ‘percolate’ for a while... occasionally for a long time. (The coverarticle from our last Issue—“The Day We All Got Sued”—reverberated around
the walls of my mind for about four years before making it to print, as did the
cover-article about legendary attorney James Durden.) Likewise, it's been that
same way with the current Issue regarding ‘hypnotically enhanced testimony.’
The genesis of the current cover-story traces all the way back to law school
and a paper I wrote for an upper-level Law & Psychiatry class. The trouble was,
I needed a Lake County, Florida, connection to make the story relevant to Lake
Legal News. A bit of further research, however, and “Bingo!” So I now invite you
to enter a Lake County time-capsule back to a trial courtroom where you will find
Judge John Booth, prosecutors G. Richard Singeltary and Mark Hill, together with
defense attorneys Bill Stone and
Comedy-Watch has joined the
Bob Williams. (The younger version
Lake Legal News family of
of all of these men!) And of course,
quarterly magazines...
don't forget to throw in a Stateprovided hypnotist, just to make
an already extraordinary murder
trial that much more interesting; the story begins on page 30...

Lake Legal News Aug. 2015

7

meet
A

P R o s e cu T O r
Atty. Jonathan Olson
State Attorney's Office

Writer: Marilyn M. Aciego
Photo: Bonnie Whicher

It wasn't long before Assistant State
Attorney Jonathan Olson knew that milking cows was not for him. “I grew up on a
dairy farm on the northwest side of Minnesota. I grew up milking cows… and I was
not a farmer. I knew that very early,” Olson
reveals to Lake Legal News with a chuckle.
“Farming was great, but it wasn't for me.”

ily had vacationed since he was a young
child. “My sisters moved down here right
out of college,” Olson recalls. “My grandmother had a house down here and my
family kind of fell in love with Florida.” It
was a big step to move across the county
and to have to take the Bar exam again.
“We were the last holdouts,” Olson notes.

As early as the 8th grade, Olson explained
his love of the law in a school assignment. “I've always wanted to be a lawyer,” Olson says, eyes shining. “I enjoy
the argument.” “So I knew very early I
wasn't going to be a farmer,” he explains.
Furthering his education first at St. Olaf
College, where he would meet his wife,
SaraJane, he later graduated law school
from Valparaiso University School of Law
and began his legal career as a judicial
law clerk in Minnesota; then it was on
to becoming an assistant county attorney where he was living at the time.

The couple chose Lake County for several
reasons, the small-town feel, for starters.
Community theater was the other draw.
Olson and SaraJane have been active
with Eustis' Bay Street Players, Leesburg's Melon Patch Players and Mount
Dora's Ice House Theatre since moving
here in 2004. Olson accepted a position
with State Attorney Brad King's office and
has prosecuted numerous felony cases
including rapes, stabbings and vehicular
manslaughter. “I love prosecuting, you
really don't know what you are going to
get. I think I've seen it all and I realize I
haven't seen anything.” (He now serves as
a felony docket supervisor, overseeing as
many as 50 active cases at any given time.)
What does the future hold for Olson? He
wistfully responds to LLN by saying, “I'm
always looking for other opportunities.” 

Olson married SaraJane—who is also currently a Lake County prosecutor—and
they had a son, PaulJon (known as P.J.)
and a daughter, Elizabeth. They chose
to move to Florida where Olson's fam-

Moving from Minnesota to Florida meant taking a second Bar exam.
8

Lake Legal News Aug. 2015

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Lake Legal News Aug. 2015

9

SECRETS of the
Gaylord Manor
T

here's a lot of history in the grand
two-story house that sits at 804
North Bay Street in downtown
Eustis, Florida. Once the childhood home
of probate and estate-planning attorney
Frank Gaylord, it now houses the office he
shares with fellow attorney Michael Rog10

Lake Legal News Aug. 2015

ers. Nearly a century old, the home was
built in 1926 by Charles Z. “Zeb” Osborne,
then a prominent Lake County Builder.
Osborne also built several schools in Eustis.
The home was purchased by Gaylord's
parents in the 1940s — but the sale

explains to Lake Legal News that his
father (who was also an estate attorney)
was always referred to as â&#x20AC;&#x153;Mr. Harry,â&#x20AC;? by
both judges and the community alike. Mr.
Harry attended Stetson University (Florida's first law school) and graduated with a
Bachelor of Law. At the time of his death in
1992, Mr. Harry had been a member of the
Florida Bar for more than 50 years. In fact,
in 1938 and just 21 years old, Mr. Harry had
been sworn in (in Eustis) as the youngest
mayor in the United States at that time,
by Circuit Judge James B. Koonce. Gaylord
still has the small Bible used to swear
his father in. Though fragile and a little

battered, the Bible is in remarkably good
condition to be more than 75 years old.
In another recollection, Gaylord tells LLN
that his mother, Faustene, was a teacher

Writer: Marilyn M. Aciego
Photos: Bonnie Whicher

included a very specific condition. As it
tuns out, the home's seller (named Cole)
also owned Lake Region News at the
time. He informed Gaylord's father that
he (Cole) had to leave Florida to go to
California to tend to business. Cole didn't
want his newspaper to fold, so Gaylord's
father was told he would have to run
the paper for two years as a condition at Eustis High School and she would invite
of the sale! (The paper was later sold.) her female students over to the family
Speaking

in

greater

detail,

Gaylord

(Continued on next page)
Lake Legal News Aug. 2015

11

the years—and sometimes clients would
take something from the table and leave
home for high tea in the living room. another thing in its place. “Folks just
kind of trade,” Gaylord says with a laugh.
The house also is home to a pump organ
from the 1850s and still has much of Keeping
with
the
older
charm,
its original charm. The brick facade is the house is furnished with many
original, along with the awnings over the antiques and cozy chairs. It has the
windows. The doors and wood floors are feel of a home and not a law office.
also original. Oak was “Other lawyers are amazed at how comused in the common fortable they feel here,” Gaylord remarks.
areas downstairs and “It's a comfort zone. It's just a great
pine was used upstairs environment to be in.” A large wood
in the bedrooms. Pine table standing in Gaylord's office—a gift
was cheaper and used from a client—is in view as he speaks.
upstairs for that reason, Gaylord notes. Gaylord naturally has fond memories
The two-story garage of growing up in the house with his two
in the back is also brothers, Harry and John. Bay Street
original; the top floor didn't have nearly the commercial growth
was used for the house
as it does
help's living quarters.
now and
The house also has a
the lots
basement, quite a rarity in Florida.
near the
Gaylord
In the days before cell phones and interM a n o r
coms, a buzzer system was used to sumw e r e
mon the help. A buzzer was installed in the
wooded.
floor of the dining room and one would
The trio
simply step on it and it would signal the
of brothhelp in their living quarters. The dining
ers would
room has since been converted to a client
e n j o y
waiting area and a rug covers it, but the watching their neighbor chase snakes
buzzer is still there. Also in that waiting with a pitchfork. They also had a fire
area is a table with a collection of trinkets pedal car they would “drive” down the
hill towards Lake Eustis. Usually the
curb would stop them short, Gaylord
remembers, and his brothers would go
flying. Today the pedal car still sits in
the living room where the boys' mother
and her students once enjoyed high tea.
(Continued from previous page)

Gaylord continued to live in the house
until he was about 16 years old and the city
decided to turn the area into commercial
property. In terms of its use today as a law
office, Gaylord has no plans of retiring and
that's been given to the attorneys over said he will likely practice until he dies.
12

Lake Legal News Aug. 2015

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Lake Legal News
A Quarterly Magazine

Issue No. 17

T wo Champs Retire
From The Ring

p. 30
Also: LakeCountyBar.Org Gets A Make-Over!

25,000 Crazed Fans Await Each Issue
A DVERTISE WITH US!

Personal
Results.
Personal Attention.
Attention. Professional
Professional Results.
Dedicated
service you
you deserve.
deserve.
Dedicated to
to giving
giving you the personal service
Committed
of mind
mind you
you need.
need.
Committed to
to bringing
bringing you the peace of

is
that the agency
U.S. statutes
to
more than 400
its commitment
enforcing in
public safety.
responsible for
security and

ensuring national
referred
justice
should
the criminal
a document commonly
al
possibilities and
I.C.E. may issue to a local jail or correction
you
citizen, then
of an individual
to as a “detainer”
a non-U.S.
is seeking custody
you engage
If you are
facility when it
instituting removal
ing that if
for purposes of
should heed-warnof criminal activity—even
known as an
in that facility
detainer is better
traveling
in any type
proceedings. This A common practice in Florida
g—or when simply
be
as simple as shopliftin n, it may cause you to
immigration “hold.” immigration detainers against
placed
using
and
“hold”
I.C.E.
trial,
on
with another non-citize
before
involves
an immigrati
‘without status’ process—because
in a criminal
arrested and have
a defendant
rial
your case in resolved
d.
against you until legal status can be determine
before any prosecuto not have grounds for
often
does
of the
court and/or your
such person generally
of the outcome
U.S. regardless
legal
citizen, the scope
remaining in the
defendant within
involving a U.S.
Conversely, a
violations is
t Resident
In a typical case
criminal case.
ces for criminal
such as Legal Permanen
to
of possible consequen in jail, paying a fine and/or
immigration status, not subject to a “hold” prior
time
.
limited to serving other court-imposed conditions
unless he/she
status, is generally
for
,
state criminal matter,
fulfillment of some many cases, the law allows
conclusion of the s rendering him/her removable
in
lly,
remain at liberty
When arrested,
has prior conviction removal order. Additiona
the accused to
in
bail so as to allow matter is pending. However,
on holds) give
and has a standing
(i.e., immigrati
allowed
while the criminal
undocumented
ns, before being
I.C.E. detainers
detain
to
non-citize
authority
the law requires
cases involving
date, pending
local jails the
criminal custody
their release
whether
The
to bail out of
immigrants beyond to immigration officials.
to first determine (I.CE.)
agency
at
ent
the arresting
on detainees
transfer of custody
Customs Enforcemviolation of
immigration holds in the State of
in
Immigration and
placement of
d practice
detainee a person
once
widesprea
a
Hence,
placed
is
considers the
jails
local
are illegally
(and thus of interest).
cases, the holds
of the charges,
Immigration laws
judges, and
Florida. In many
is arrested, regardless and have the
enforcement officials,
the non-citizen
immigrants are
by local law
s are notified
undocumented
arrested person.
immigration authoritie
jailers. As a result, unauthorized detentions even
a “hold” on the
and
power to place
subject to lengthy
have been cleared.
charges
U.S.
I.C.E. hold?
though their criminal
and what is an
ent (I.C.E.)
Who is I.C.E.,
on a jailed imCustoms Enforcem
an I.C.E. hold is a request to
directly under
Immigration and
Who can place
investigative Agency Security. It’s
immigration detainer
an indiis the largest
migrant? An
nt of Homeland
nt agency to detain
the U.S. Departme to protect national security,
a local law enforceme
is
U.S.
page 38)
primary mission
integrity of the
(Continued on
(including the
on. The
public safety
trade and immigrati
encompass
borders), customs,
enforcement authority
agency’s law
in Spanish).
is bilingual (fluent
Florida, and
in Leesburg,
practices law
Mr. Cardona

t surely seems as if it's getting harder
and harder to simply drive down the
road, minding your own business, and
to get from point-A to point-B without
getting pulled over. And if you ever wondered what criminal defense attorneys sit
around talking about at lunch, it's questions like, “Hey?!... do you think that the

little frame around my license tag will get
my wife pulled over?” “How could it?,”
someone replies, incredulously. “Don't
most new car dealerships hand them out
like candy?” “Well I've heard that you
can't even have a trailer hitch in Florida,”
someone else adds to the mix. “I think
that depends where in Florida you live,”

(THOMAS, J.) This appeal involves two consolidated circuit court cases... We affirm
the trial court's denial of the motion to suppress, as we read the plain language of section 316.605(1), Florida Statutes (2013), to

And so it goes: Another case for the Florida
Supreme Court to one day weigh in on— in your life as a motorist. Oh, that ‘cursed
unless (as the following decision implies)— and evil’ Florida trailer hitch! Read on:
you wish to move to Texas or Missouri
and have a peaceful measure of certainty [ Ed. Note: Opinion below has been abbreviated in places.]

mean that a license tag's alphanumeric designation may not be obstructed by any matter, including a trailer hitch. We certify conflict
with the decision of the Second District Court
of Appeal in Harris v. State, 11 So. 3d 462
(Fla. 2d DCA 2009) (Khouzam, J., dissenting).
* * *

Section 316.605, Florida Statutes, provides in
pertinent part:
(1) Every vehicle, at all times while driven,
stopped, or parked upon any highways,
roads, or streets of this state, shall be li(Continued on next page)
Lake Legal News Aug. 2015

19

(Continued from previous page)

censed in the name of the owner thereof
in accordance with the laws of this state...
[and] display the license plate... in such
manner... [that] the alphanumeric designation shall be clear and distinct and free
from defacement, mutilation, grease, and
other obscuring matter, so that they will
be plainly visible and legible at all times
100 feet from the rear or front. Except as
provided in s. 316.2085(3), vehicle license
plates shall be affixed and displayed in
such a manner that the letters and numerals shall be read from left to right parallel
to the ground. No vehicle license plate may
be displayed in an inverted or reversed position or in such a manner that the letters
and numbers and their proper sequence
are not readily identifiable. Nothing shall
be placed upon the face of a Florida plate
except as permitted by law or by rule or
regulation of a governmental agency. ...A
violation of this subsection is a noncriminal
traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
(Emphasis added.) As noted above, the Second and the Fifth District Courts currently
disagree on how this section is interpreted.
In Harris v. State [11 So. 3d 462 (Fla. 2d DCA
2009)], [t]he Second District found that the
relevant portion of the statute was as follows:
[A]ll letters, numerals, printing, writing,
and other identification marks upon the
plates regarding the word “Florida,” the
registration decal, and the alphanumeric
designation shall be clear and distinct
and free from defacement, mutilation,
grease, and other obscuring matter, so
that they will be plainly visible and legible
at all times 100 feet from the rear or front.

obscuring matter,” and concluded that the doctrine of ejusdem generis caused this language
to apply only to matter on the license plate itself: “Pursuant to the ‘ejusdem generis’ canon
of statutory construction, where general words
follow the enumeration of particular classes
of things, the general words will be construed
as applying only to things of the same general
class as those enumerated. Black's Law Dictionary 514 (6th ed. 1990).” Id. The court found
that “a reading of the language in the statute
shows that the license plate must be free from
obscuring matter, be it grease, grime, or some
other material placed over the plate. However, it would not include a trailer hitch that is
properly attached to the truck's bumper.” Id.
* * *
Judge Khouzam dissented and... asserted
that the majority's interpretation was unreasonable, as it resulted in a situation where
items that clearly obscured the plate would
not be in violation of the statute, if the items
were not affixed to the license plate itself.
Id. In support of its interpretation, the dissent pointed to the Third District's opinion in
Wright v. State, 471 So. 2d 155 (Fla. 3d DCA
1985), as instructive, noting that Wright involved a license plate obscured by a dirty rag
and there the court held that the officer had
the authority and even duty to investigate why
the license plate was obscured. Id. The dissent found the trailer hitch analogous, noting
that it appeared that the rag in Wright was
not affixed to the face of the license plate. Id.

In State v. English, 148 So. 3d 529 (Fla. 5th
DCA 2014), the Fifth District adopted a similar view as the dissent in Harris. In English,
the defendant was stopped by two police officers after they noticed that the plate light
and its attached wires were hanging down
“in front of” the license plate and obstructing the officers' views of the plate, rendering
Id. (quoting § 316.605(1), Fla. Stat.) (emphasis at least one letter unreadable. Id. The plate
in original). The majority held that the only lan- only became readable momentarily, when
guage that would apply was the phrase “other the vehicle turned, causing the wires to shift,
20

Lake Legal News Aug. 2015

but after the turn became obstructed again.
Id. Based on the fact that the plate was unobstructed during the turn, the trial court concluded that once they were able to read the
actual numbers, it was no longer a violation. Id.
The Fifth District reversed and held:
Based on the plain reading of the statute,
the alphanumeric designation on the license plate must be plainly visible at all
times. Here, according to the testimony of
the officers, which the trial court found reliable, English's tag was not in compliance
with the statute. As such, the officers had
the authority to conduct a traffic stop in
this case. See Wright v. State, 471 So.2d
155, 156–57 (Fla. 3d DCA 1985) (finding
that officer charged with enforcing motor vehicle laws had the duty and authority to investigate why a vehicle that was
parked in the roadway had its license tag
partially obscured with a dirty rag, in violation of the law). But see Harris v. State,
11 So.3d 462, 463–64 (Fla. 2d DCA 2009)
(finding that police officers who were unable to read defendant's license plate because of a trailer hitch properly attached
to the vehicle lacked authority to perform
a traffic stop, because matters external
to the tag, such as trailer hitches, bicycle
racks, handicap chairs, u-hauls, and the
like were not “other obscuring matter”).
Id. at 530.
* * *
In our view, the Legislature's intent could
not be more clear: the tag's alphanumerical designation must be displayed and visible within 100 feet. This is reiterated in the
statute's requirement that prohibits the
display of tags such that the “letters and
numbers... are not readily identifiable.” Id.
We further note that the statutory catchall
phrase “other obscuring matter” does not
distinguish from obscuring matter “on” the

license tag versus external matter obscuring the tag. Had the Legislature wanted to
draft a statute that only made it illegal to obscure the license tag's alphanumeric designation by matter that was “on” the tag, it could
have easily done so, as other states have
provided. Instead, the Legislature's overarching concern is that the alphanumeric designation be visible and legible within 100 feet.
Appellant asserts that the notion that a license
tag obscured by a trailer hitch could violate the
statute is absurd, as the Legislature could not
have intended that every vehicle with a trailer
hitch attached to it would be subject to a stop
by law enforcement officers. We disagree, and
hold that this plain reading is reasonable, as
the Legislature has a legitimate public-safety
interest in ensuring that license tags remain
unobstructed. The Legislature has an interest
in ensuring that law enforcement officers can
readily identify license tag numbers. In addition, the Legislature could have intended that
the general public has the ability to identify
license tags, if necessary, to report criminal
activity or other important information. As
such, we do not think such a plain reading
of the statute leads to an absurd conclusion.
Both Missouri and Texas recognize that the
language in relation to obscuring in their respective statute or code could clearly be read
as including trailer hitches, bicycle racks and
similar items; but both states specifically
enacted laws that either specifically allow
such obstructions or require persons to provide additional license tags on the vehicle.
Here, the deputy had a valid basis for
the stop, as the trailer hitch obscured
a portion of the alphanumeric designation; thus, we affirm the trial court's denial of Appellant's motion to suppress. 
AFFIRMED; CONFLICT CERTIFIED. (LEWIS, C.J.,
and BENTON, J., CONCUR.)

Lake Legal News Aug. 2015

21

meet

A

FI R e F I g h T e r
Assist. Chief Jack Fillman
Lake County Fire Rescue
Of all things, it was a love of golf that
brought Lake County Assistant Fire Chief
Jack Fillman down the path to where he
is today. Beginning with a career as a
licensed contractor in Putnam County,
Florida, Fillman would often run into
the same gentleman while playing on
the golf course. He asked the man one
day how he was able to play golf so
often, to which the man replied, “I only
work 10 days a month.” This intrigued
Fillman and the man explained that he
was a firefighter; he worked 24 hours
and then had 48 hours off—a total of 10
days a month. Jack Fillman was hooked.

Writer: Marilyn M. Aciego
Photo: Bonnie Whicher

told him he was able to walk because
of what Fillman did on the scene the
day of the incident. “That was the icing
on the cake for me,” he still remembers.
Fillman, married with four children and
five grandchildren, spent his first 20
years in Putnam County as a firefighter/
paramedic—the first 15 of those years out
in the field. “I miss being out there, getting
a chance to interact with the public,” the
veteran firefighter states. He came to Lake
County in 2000 in order to expand the
county’s Advanced Life Support System,
and “looking for a change.” In 2000, Lake
County had only one station with an
Advanced Life Support System (now there
are 14). Likewise in 2000 there were less
than 10 paramedics (now there are 50). In
connection with an Advanced Life Support
System, firefighter/paramedics can do a
variety of things—including administering
medications,
providing
advanced
airway techniques, and monitoring and
interpreting cardiac rhythms. Those
things can make all the difference
when someone is fighting for their life.

Fillman began his firefighting career as a
volunteer at the Palatka Fire Department,
a small agency in Putnam County. “I
absolutely fell in love with it,” he recalls.
“No two responses or calls are ever the
same.” One call sticks out in his mind
the most. A young man had a pistol in
his pocket when it accidently went off
and the bullet traveled down the young
man's leg. Several months later the same
young man hobbled with a cane into the
fire station, along with his father to thank
Fillman. He told Fillman that doctors In his position as Assistant Fire Chief of

Administration, Fillman has a laundry
list of duties, including serving as the
agency's Public Information Officer,
overseeing logistics, communications
and training, just to name a few. He
has supervisory responsibility for
training nearly 200 firefighters at 23
stations across both rural and urban
areas of Lake County. Florida requires
32 hours of continued training every
two years for EMTs and Paramedics,
and there is also a variety of specialized
training—including trench rescue and
hazardous materials training. “There's
always some new toxin,” Fillman notes.
To become a firefighter/paramedic,
it takes a lot of devotion to pass the
1,100-hour course. Students must also
participate in numerous clinicals including working in local hospitals, observing
autopsies and 250 hours on an ambulance. “You have to commit a year of your
life,” Fillman explains. The firefighters
that make this commitment are invaluable to the residents of Lake County;
every day and during disasters—such as
the hurricanes of 2004 and the Groundhog Day Tornados in 2007. Fillman plans
for these disasters as best as one can,
and looks forward to the Emergency
Operations Center opening, and hopes
construction can begin soon. Right now
when there is a potential emergency or
disaster approaching, representatives
from each of the cities and county agencies, such as animal control, Lake County
Sheriff’s Office, Lake County School
Board and numerous others, crowd into
the Rotunda of the Lake County Administration Building (also known as the
“Round Courthouse.”) It can get pretty
noisy and hectic in there with multiple
people talking and countless cell phones
ringing. “In my opinion, [the new Emergency Operations Center] is extremely
needed,” says Fillman, “I'm looking forward to the day we can get in there.” 

z

z
In Memory of...

Jack Clifford Fillman
Feb. 1, 1952 – July 30, 2015

REPRINT OF THE LLN
ARTICLE APPEARING
IN OUR NOVEMBER,
2011 ISSUE (NO. 8)
... Jack and his wife of 31
years, Patricia, got to enjoy
there sixth grandchild.

z

z
Lake Legal News Aug. 2015

23

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Lake Legal News
A Quarterly Magazine

Issue No. 20

Comedy-Watch
#1

Free Copy!

5

‟ Watching Real Life, Just

p. 30
Also: Our Album Of Lost & Forgotten Photos...

In Print & Online

Thinkstock / james steidl and CagleCartoons.com

th
Anniversary
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March, 2015
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Lake
County's
Most
'Hypnotic'
Trial
 by James Hope, J.D.

A

n equally intriguing title for this
article could have been, “The
Day The Hypnotist Strolled Into
Town.” That—and the chosen title, “Lake
County's Most ‘Hypnoic’ Trial”—probably both convey the sense equally well
that this is no ordinary tale. Indeed, to
shamelessly put the story in the style
of legendary lawyer James Durden, ‘Let
your mind wander back to a jury trial in a
tense courtroom in Lake County, Florida,
roughly a quarter of a century ago... ’
The end result of Preston Crum Jr.'s first
Lake County trial, held before Circuit Judge
John Booth, was being sentenced to die in
Florida's electric chair for a cold, heartless murder. Recently, Lake County Circuit
Judge G. Richard Singeltary—who at the
time co-prosecuted Crum along side pres(Continued on next page)
30

Lake Legal News Aug. 2015

Lake Legal News Aug. 2015

31

Photo: Thinkstock /George Doyle

(Model is unconnected to article)

(Continued from previous page)

ent day Circuit Judge Mark J. Hill—told
Lake Legal News, “Preston, while he had a
mouthful of a Big Mac sandwich, pulled out
his gun and blew the victim away.” Singeltary further recalls how Crum purposely
mutilated the victim's body in a gruesome,
yet failed effort to make identifying the
victim impossible: The victim's eyes were
blown out, this teeth were smashed out,
and his hands were cut off. (Singeltary
tells LLN that it was the fact that Crum
overlooked a tattoo on the victim's shoulder that made identification possible.)
Crum is dead now, but not as the result
of the death penalty—as there is much
more to the story. In fact, Crum's murder conviction was overturned in 1981
on an appeal to the Florida Supreme
Court. As it turned out, on the morning
of Crum's trial Assistant Public Defender
William Stone learned for the first time
that Preston Crum Jr.'s co-defendant
(and brother, Marvin Crum), was planning
to testify against Preston when the trial
commenced. Stone immediately moved
(post jury-selection) to “sever” the two
brothers' cases for trial, however Judge
Booth denied severance. Although private trial counsel was appointed for one
of the brothers, repeated joint-requests
for separate trials were denied, leading the Florida Supreme Court to ultimately rule: “[H]aving concluded that
the trial court abused its discretion by
denying Preston's severance motion,
we reverse and remand for a new trial.”
Crum v. State, 398 So.2d 810 (Fla. 1981).
All of the foregoing merely sets the stage
for Crum's second murder trial, where—
as a reward to anyone reading this story
up to this point—you will find that things
became ‘hypnotically’ more interesting.
Specifically, it all centered around the
addition of a prosecution witness who
32

Lake Legal News Aug. 2015

testified for the first and only time at
Crum's re-trial. (A re-trial that also ended
in Crum murder conviction, however this
time the result was a life sentence rather
than a death sentence. In a somewhat
macabre way, Florida's Department of
Corrections web site lists “09/17/2008”
as the Crum's “Date Out-Of-Custody”—
meaning the date he died in prison.)
Some today remember the woman as
“Angie,” others remember her as “Angel,”
while still others likely have it correct—a
woman named Angie who called herself
Angel. Angel used to hang around the
victim, Gene Thurston. Attorney Robert
Williams (Crum's co-appellate attorney
in both cases, and co-trial attorney during the second trial), recalls Thurston
as being quite the “male biker dude.” In
fact, the over arching circumstances leading to Thurston's murder (and the related
kidnapping of a man named Robert Fuhr),
according to Williams, revolved more or
less around a “drug and alcohol bender.”
As for his prosecution re-trial witness,
Angel, Singeltary remembers her as “a
self-described nurse in a motorcycle gang
out of Atlanta.” In preparation for Crum's
first trial, Assistant Public Defender Stone
had taken Angel's sworn deposition, yet
had concluded that the woman had littleto-nothing to offer either side of the case,
substantively. It was therefore no surprise
to Stone when the prosecution never
called Angel to testify during the first trial.
Prior to the second trial, however... and it
is a huge “however”... Angel had crossed
paths with a hypnotist provided by the
Florida Department of Law Enforcement
(FDLE). According to Stone, Angel's “hypnotically enhanced testimony” (to use
the common legal expression)—and more
specifically, her newfound recollections—
were “extremely detrimental to Preston.”
Still becoming emphatic after all these
years, Stone tells LLN that looking from a

the ‘Angie’ I deposed before the first trial.”

Preston Crum Jr. (a/k/a Preston Junior
Crum) was convicted of first degree murder and sentenced to death as the result of
his first Lake County trial. Following a successful appeal, and re-trial, he was again
convicted, but received a sentence of life
in prison. Notably, Crum's second trial included “hypnotically enhanced testimony”
on the part of a prosecution witness who—
when previously deposed under oath—had
been unable to remember any salient facts
of the crime. Crum died in prison in 2008,
with the Florida Department of Corrections
web site now grimly listing “09/17/2008” as
Crum's “Date-Out-Of-Custody”—a truism.
Since Crum's conviction was affirmed by
the 5th DCA in 1983, the Florida Supreme
Court has generally barred testimony that
is the product of the type of ‘hypnotic’
process at play in Crum's case; incidentally, the prosecution's witness had become so emotional ‘reliving her memories’
while under hypnosis that she vomited.
juror's point of view, “She looked like Cinderella [during the re-trial] compared to

When asked to think back about forensic
details associated with Angel's hypnotic
session, Singeltary admits that he did not
personally attend whatever took place.
However, the former prosecutor vividly
remembers that the FDLE-provided hypnotist referred to Angel as a “profound
somnambulist,” claiming that the State's
witness was “highly susceptible to hypnotism”—one of the most suggestible
subjects the hypnotist had ever encountered. Moreover, Singeltary tells LLN that
Angel reportedly “was so traumatized by
‘recalling’ the events that she ‘witnessed’
[while hypnotized] that she threw up during the hypnotic session.” Defense attorney Williams describes the net-result of
Angel's hypnotically enhanced testimony
this way: “It was not so much that she
changed her testimony [between her prehypnotic deposition, and the re-trial], as
it was that she could now ‘remember.’ ”
As one might expect, the State's use of hypnotically enhanced testimony was raised
as an issue before Florida's Fifth District
Court of Appeal, following Crum's second
conviction. In upholding the State's case,
the 5th DCA framed the issue as follows:
This case involves the admissibility of
the testimony of a witness whose recollection had been refreshed by hypnosis.
Prior to trial a State's witness was
placed under hypnosis in order to
refresh her memory. Under hypnosis
and afterwards at trial she was able
to recall specific details of the factual events involved in appellant's
trial that had previously escaped her
recollection. Appellant's motion to
suppress the witness' testimony and
statements made subsequent to the
hypnotic session dealing with all matters discussed during the hypnotic
Lake Legal News Aug. 2015

33

session was denied and the witness
was permitted to testify from her
present memory as refreshed by
the hypnosis. On appeal it is argued
that the trial court erred in denying
the motion to suppress. We affirm.
* * *
We agree with the cases that hold
that the dangers attendant to the
pre-trial examination of witness
under hypnosis go to the weight to
be accorded the testimony of the witness by the jury at trial and not to the
competency of the witness. We hold
that the testimony of a witness is
not rendered inadmissible by reason
of the fact that the witness has been
examined under hypnosis before trial.

hypnotic technique and procedure in
that case and to make a competency
and admissibility ruling based on the
result of his weighing the reliability
of the particular hypnotic session
and its results [Footnote omitted].
Under current Florida law, statements elicited during and after hypnosis are considered unreliable and generally may not be
admitted into evidence at a criminal trial.
See Stokes v. State, 548 So.2d 188, 195-96
(Fla. 1989); Bundy v. State, 471 So.2d 9, 18
(Fla. 1985). That is perhaps one reason why
Stone, Crum's now-retired lead defense
attorney, sums up his feelings about the
case by telling LLN, “That particular case
sticks in my craw to this day.” (Note that
Stone's prompt recollections don't even
require the swing of a pocket watch.) 

Photo: Thinkstock /Hemera Techno.)

Read Online @ LakeLegalNews.com

While we think that the court's suggestions in Brown [v. State, 426 So.2d
76 (Fla. 1st DCA 1983)] are well made,
we think the effect of those suggestions being, or not being, followed
are only matters to be presented and
argued by counsel for the benefit of
the jury in weighing the testimony of
the witness in a particular case. We
do not require the trial judge in each
case to hold a pre-admission hearing to consider the facts presented
and to weigh the reliability of the
34

DON'T TRY THIS AT HOME!
The “father” of modern day hypnosis is Franz Anton Mesmer (1734 - 1815), who
laid claim to hypnosis (“animal magnetism,” in Mesmer's parlance) as a branch of
medicine. According to Mesmer's theory, all bodies are pervaded by a universal
magnetic fluid which is influenced by the planets. Mesmer believed that planetary
influences created magnetic disharmony, in turn, producing maladies in humans.
From the early 1900s until World War II, hypnosis passed through three or four cycles
in which intense interest was followed by periods of condemnation as quackery.
Although a great deal of research has continued to be done in an effort to
determine what hypnosis actually “is,” there is still today no single generally
accepted scientific theory. Indeed, at least one expert resigned himself to the
comfort of post-hoc circularity: ‘Whatever hypnosis is, there will be more of it
in people who show more effects of hypnotism.’ Shorthand attempts to define
hypnosis include phrases such as, “structured form of aroused concentration”
or “state of heightened suggestibility induced in one person through another.”

ART: Thinkstock /Stockbyte /Getty

Doubtless, by any definition, the two salient conditions that hallmark the hypnotic state (or “trance”) are hypersuggestibility and hypercompliance. Alarmingly, research has shown that during ‘hypnotic recall,’ imagined events can seem
as authentic as reality, images can be extremely vivid, and there is a heightened
level of fantasy in which images become so compelling that subjects can no
longer discriminate between what they made up and what actually happened.
This, together with numerous other documented problems common to hypnotic
sessions, have made trial witnesses all but invulnerable to cross-examination.

Lake Legal News Aug. 2015

35

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liminary ‘sign off’ on the application. This is
something that can cause significant confusion because some CLEO's choose to exercise
the discretion afforded to them and refuse to
provide this sign-off. Assuming the applicant
does get their CLEO's signature, which itself
can take many weeks or even months to obtain, the applicant must then submit fingerprints and a current photo with their application. All of this is required just to get to the
point of being able to submit the application
packet for review by a Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF) examiner.

The world of firearms trusts is filled with
enough acronyms, measurements and legalease give even the heartiest enthusiast a headache. It all started in 1934 when the National
Firearms Act (NFA) was passed to regulate the
possession of certain types of firearms and accessories. The items governed by the NFA include suppressors /silencers, short barreled
rifles and shotguns as well as machine guns
that were made before 1986. There are other
items that also fall into the NFA governed category but they are much less common in the Bear in mind that the tax stamp application
private sector and need not be discussed here. processing times have only recently dropped
to approximately six months. What is more,
Contrary to popular belief, the NFA did not the individual tax stamp holder is then the only
create a licensing requirement, but instead person that may lawfully possess the item. This
imposed a $200 tax that required posses- means that even the applicant's spouse is prosion of a tax stamp as proof of payment. Ul- hibited from possessing, actually or constructimately, this a distinction without a differ- tively, the NFA item. Some have noted that
ence because whether it is called a tax stamp this can cause a spouse—who has access to
or a license, the document still has to ‘ride the safe's combination in which the NFA item
shotgun’ with the firearm or device it is reg- is stored—to be in violation of federal law.
istered to. The failure to produce the stamp
while in possession of the NFA governed With the foregoing considerations as backitem can result in federal criminal penalties. ground, we can now turn to the reasons why a
firearms trust can be beneficial: First, the trust
Finally, a tax stamp can be acquired via either allows the trust applicant to skip all of the above
the individual method or the trust method. preliminary work and jump directly to the fedThe individual method requires a citizen who eral tax stamp application process. (This fact
is otherwise allowed to possess firearms to alone can reduce total application times draapply for a tax stamp that must be registered matically.) Second, the trust applicant can also
to him or her individually. This approach re- assign any qualified citizen to be a beneficiary
quires that the applicant get their Chief Law of the trust—and this helps protect the trust
Enforcement Officer (CLEO) to provide a pre- property by ensuring that friends and loved
Attorney Zach McCormick's law practice in Tavares, FL, includes Second Amendment and other civil rights issues

40

Lake Legal News Aug. 2015

ones are not inadvertently faced with unlawful
possession of an NFA item. Third, the trust provides the added benefit of preserving the trust
property in the event that the trust applicant
becomes legally incapacitated or passes away.
As a practicing attorney who regularly prepares NFA firearm trusts for clients, I have
of course had people say, “I can simply pull
a trust document from the internet, right?”
(Right! And I've also heard that there are very
helpful web sites dedicated to performing
one's own open heart surgery for those ‘do-ityourselfers’ out there.) Kidding aside, an NFA
firearms trust is a very important legal device
that must be properly crafted. Moreover, your
attorney should be familiar with the nuances
of both the federal and state law as it applies
to NFA items. Bear in mind that the temptation to simply use other general trusts that
an applicant may already have should be resisted, because NFA firearms trusts differ in
many material respects from the traditional
revocable living trust. Not least of all reasons, an improperly drafted NFA firearms trust can lead to federal prison
time for the unwary trust applicant.

By: James Patterson & Maxine Paetro
Known for his legal thrillers, Bernhardt Publisher: Little Brown and Company
tells an entirely different tale with “The
Game Master.” As the novel begins there
is a murder of a scientist and a woman is Detective Lindsay Boxer has one of her
kidnapped. BB The Game Master finds that toughest cases to solve because the perthe woman is his daughter who has been petrators are dressed as cops in “14th
kidnapped by someone who wants to play Deadly Sin,” the newest installment of
a new kind of game with him. He and his the Women's Murder Club. Lindsay must
ex-wife travel around the world picking up determine if they are impersonators or
clues like a scavenger hunt that also plays real cops committing many different
out like different games including poker, crimes, as well as figure out why on one
monopoly, and several others that are part of the member's birthdays each year
of the clues. Also there is a national crisis, there is a murder that remains unsolved.
that ties into the search for BB's daugh- She begins to wonder if there is a conter. Like his legal thrillers, Berhardt fills nection. “14th Deadly Sin,” like the other
the story with suspenseful situations and novels in the series, is rapidly paced to
a story that moves along very quickly to its final conclusion. The plot has many
its final revealing ending. “The Game Mas- twists and turns to keep readers turning
ter” is a tense nail biting thriller that has pages until the end. “14th Deadly Sin” is

Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for over 35 years; his reviews have appeared in hundreds of daily and weekly newspapers and other periodicals. Over the years Roen has been the Promotion / Sales Representative for several publishing houses. He was a talk show host on the Rollins College radio station, was co-host on a
weekly radio talk show on “Desperate and Dateless,” was the roving reporter for “The Tourist Breakfast Travel Show,” frequently appeared on The Michelle Valentine show on cable and was a monthly
guest on the Bobbie Thomas show. Find him currently on the “My Home Town” show with Jim Turner (WBZW, Orlando) and the Larry Steele show (WPUL, Daytona Beach). Roen also works for numerous companies in the field of market research in the Central Florida area as an independent contractor.
42

Lake Legal News Aug. 2015

a great addition to this popular series. personal and business relationships. She
recommends to be alert to what someone
is asking, or telling what they like about
• Robert B. Parker’s Kickback:
you, be careful what you put on social
A Spenser Novel
media because it could come back to
haunt you, tune into what a person tells
By: Ace Atkins
about themselves, and be more careful in
Publisher: Penguin Group, USA
who you deal with in life. One of the most
interesting things was how Patrick misread a man she was prosecuting when she
Atkins took over the series of Parker encountered him on an elevator before
Spenser books with “Lullaby”—showing entering the courtroom for the first time.
that he was a very good choice to con- There are many different types of warntinue the novels—but “Kickback” is the ings to readers that should be learned and
best and closest to Parker that Atkins has used to not get taken by the many vultures
done so far. Spenser, Hawk, and Susan are in business and personal relationships.
back in a very fast paced story that shows
the dangers the internet can cause to a
person. A seventeen year old boy posts a • Cane and Abe
tweet that lands him in prison. Spenser is
hired by the boy's mother to find out why By: James Grippando
her son has been punished so severely. Publisher: Harper
Spenser finds there is a crooked cop, judge
and other public officials in the small town
the boy resides in. The story races along
with snappy dialogue, interesting char- James Grippando has always told a good
acters, and many twists and turns that tale of suspense but “Cane and Abe” is
include a road trip for Spenser and Hawk one of his best. Miami prosecutor Abe
to Tampa, Florida; it all makes “Kickback” Beckman's life takes a twisted turn where
one of the best of the many Spenser titles. he is a suspect in a series of cases. One
is the disappearance of his wife. Even
his most trusted friends are beginning
• Red Flags: How to Spot Frenemies, to wonder about him and are not very
Underminers, and Toxic People in helpful. He must put the pieces of the
Your Life
puzzle together to prove his innocence.
Grippando is a master of the genre and
By: Wendy L. Patrick, Ph. D.
“Cane and Abe” shows why fans of legal
Publisher: St. Martin's Press
thrillers will love this roller coaster ride. 
Red flags are things many of us overlook
in different aspects of our lives. Wendy L.
Patrick tackles the issue in her new book,
“Red Flags: How to Spot Frenemies, Underminers and Toxic People in Your Life.” As
a district attorney she tells stories of the
criminal justice system to convey warnings
of things for people to look for in their

Comedy-Watch has joined the
Lake Legal News family of
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Lake Legal News Aug. 2015

43

Civil
Blotter

● In Woodson v. Go, M.D., et al., 40 Fla.
L. Weekly, D1499a (Fla. App. 5th Dist.,
June 26, 2015), an appellate medical malpractice case, it was held that the trial
court did not abuse its discretion by disallowing expert testimony on the basis
that is was cumulative to other evidence.
[W]e recede from Lake v. Clark, 533
So. 2d 797 (Fla. 5th DCA 1988),
to the extent it holds that with only
very broad limits, all qualified expert
opinion testimony in a medical malpractice case is to be permitted, even
if it is cumulative to other evidence.

tice cases, it is almost always improper to limit expert witness testimony
based on cumulativeness. In support
of this argument, he relies heavily on
the following language from Lake:
The fact [that the proffered expert
witness testimony] was corroborative of other testimony, or even
cumulative to it, does not matter.
A medical malpractice case is always necessarily a battle of expert witnesses. Within only very
broad limits all qualified opinion
testimony should be allowed;
that is, not disallowed because it
is cumulative to other evidence.

Appellant maintains that because of
the unique nature of medical malprac-

clusion of the instruction was reversible error, citing Brown, 11 So. 3d
at 430, in which the Second District
Court of Appeal broadly held that
use of the identical “no corroboration” instruction was error. However, the Fifth District, after refusing
to recognize a “hard and fast rule
that it is always error to give a special ‘no corroboration' instruction
in sexual battery cases,” held that
giving such instruction was in the
trial court's discretion, but should be
given “only in very limited circumstances where the defendant's argument suggests the jury must require
corroboration.” Gutierrez, 133 So.
3d at 1131. Concluding that the defendant's opening statement did not
open the door to such an instruction, the Fifth District held that the
use of the “no corroboration” instruction was indeed error in this
case, but was harmless. Id. at 1131.

During the charge conference, the
prosecutor requested a special instruction advising the jury that the
testimony of the victim need not
be corroborated in a prosecution
for sexual battery. Defense counsel objected to the proposed special
instruction because it did not appear
in the standard jury instructions relating to weighing the evidence and
because it singled out the testimony
of the victim and could mislead the
jury into believing it did not need to
weigh or evaluate the credibility of
the victim's testimony. Because defense counsel had argued in her opening statement that there was a lack of
corroboration of the alleged crime,
and because section 794.022(1),
Florida Statutes (2012), provided
that in a prosecution under section
794.011, the testimony of an alleged
sexual battery victim “need not be
corroborated,” the trial court gave the
instruction as part of the standard instruction on weighing the evidence.
* * *
On appeal, Gutierrez argued that in-

* * *
We agree with the Second District
in Brown that the statement of
law that the testimony of the victim need not be corroborated is
not a proper jury instruction... As
the Second District noted in Brown,
“[r]eading a statute to the jury as
an instruction is not necessarily erroneous.” Brown, 11 So. 3d at 433
(quoting Ruskin v. Travelers Ins. Co.,
125 So. 2d 766, 769 (Fla. 2d DCA

in excluding a doctor's expert witness testimony on whether the defendants had breached their standard of care. Id. at 800. However,
the opinion does not set forth the
number of other experts, if any, that
had also testified on this issue. Furthermore, given our conclusion in
Lake that the excluded testimony
was “critical to the plaintiffs' case,”
it is difficult to determine whether
or not the above-quoted language
the Appellant relies upon was dicta.
* * *
We conclude that under the facts
of this case, the trial court's determination that each party be limited to one expert on the standard

1960)). However, as the Brown court
also warned, the instruction based
on the statute must not mislead the
jurors. Id. Further, such an instruction must not violate other longestablished principles such as the
right of a defendant to have a jury
trial free from comment or intimation by the trial judge on the weight,
character, or credibility of the evidence. In 1896, we cautioned in Lester v. State, 20 So. 232 (Fla. 1896):
[G]reat care should always be
observed by the judge to avoid
the use of any remark in the hearing of the jury that is capable,
directly or indirectly, expressly,
inferentially, or by innuendo, of
conveying any intimation as to
what view he takes of the case,
or that intimates his opinion as
to the weight, character, or credibility of any evidence adduced.
All matters of fact, and all
testimony adduced, should be
left to the deliberate, independent, voluntary, and unbiased
judgment of the jury, wholly
uninfluenced by any instruction, remarks, or intimation,
either in express terms or by
innuendo, from the judge,
from which his view of such
matters may be discerned.
Any other course deprives
the accused of his right to trial by jury, and is erroneous.

of care and one expert on causation did not constitute an abuse of
discretion. See Lion Plumbing Supply, Inc., 844 So. 2d at 770 (holding
that trial court may limit number of
experts per side so as to prevent presentation of cumulative testimony).
Our greater concern is the failure of the trial court to notify the
parties of its decision to impose
restrictions on expert testimony
at an earlier time. Litigants are
entitled to fair notice of restrictions on expert witness testimony
so that they may prepare their
case accordingly. Id. at 770-71.
● Using a Petition for Writ of Prohibition, the petitioners in Forehand v. Walton County, et al., 40 Fla. L. Weekly,

* * *
Judge Evander... agreed with the
Brown court that the “no corroboration” instruction is improper because
it is likely to confuse and mislead the
jury. Gutierrez, 133 So. 3d at 1132
(Evander, J., concurring in part, dissenting in part). He also noted that
Florida Standard Jury Instruction 3.7
(Criminal) provides that “[a] reasonable doubt as to the guilt of a defendant may arise from the evidence,
conflict in the evidence, or the lack
of evidence.” [Citations omitted.]
Judge Evander aptly noted:
Thus, a juror can properly conclude that an alleged victim's
testimony in a particular case
is not, in and of itself, sufficient
to establish a defendant's guilt
beyond a reasonable doubt. As
a result, that juror may conclude that without “corroborating evidence,” a reasonable
doubt exists because of the
lack of evidence. It is readily
foreseeable that such a juror
may be misled or confused
by an ensuing, and arguably
inconsistent, instruction that
the alleged victim's testimony
need not be corroborated.
* * *
Accordingly, we quash the deci-

D1855d (Fla. App. 1st Dist., August 7,
2015), sought unsuccessfully to disqualify the trial judge based upon his rulings
adverse to petitioners, and his comments
on his knowledge of rainstorms that had
affected areas in the Florida Panhandle.
On appeal, it was noted and decided:
A motion for disqualification is legally sufficient “when the alleged
facts would create in a reasonably
prudent person a well-founded fear
of not receiving a fair and impartial
trial.” Valdes-Fauli v. Valdes-Fauli,
903 So. 2d 214, 216 (Fla. 3d DCA
2005). The party seeking disqualification bears the burden to show a

(Continued on next page)
sion of the Fifth District in Gutierrez, approve the decision of the
Second District in Brown, and
remand for a new trial at which
the jury is properly instructed.
● A recent appellate case sheds some
light on the term “original, ongoing investigation”—at least in the context of
attempts to extend the statute of limitations in certain cases that have become,
by comparison, “inactive.” In Therlonge
v. State, 40 Fla. L. Weekly, D1646d
(Fla. App. 4th Dist., July 15, 2015):
On October 7, 2011—after the statute of limitations period expired as
over three years had passed since
the crime was reported to law enforcement—Appellant was charged
with lewd and lascivious battery
of a person under sixteen years of
age. Despite the time lapse, the
State argued that it was permitted to continue the prosecution under section 775.15(16)(a),
which provides an extension
to the statute of limitations period in certain circumstances:
In addition to the time periods
prescribed in this section, a prosecution for [a lewd or lascivious
offense] may be commenced at
any time after the date on which

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Lake Legal News Aug. 2015

45

(Continued from previous page)
well-founded fear of not receiving a
fair trial. See Adkins v. Winkler, 592
So. 2d 357 (Fla. 1st DCA 1992).
“A verified motion for disqualification must contain an actual factual
foundation for the alleged fear of
prejudice.” Fischer v. Knuck, 497
So. 2d 240, 242 (Fla. 1986). A mere
“subjective fear[ ]” of bias will not
be legally sufficient; rather, the fear
must be objectively reasonable. Id.
In this case, our review of the record—including the trial judge's
passing reference to knowledge
of events in a neighboring county caused by the April 30, 2014,

(Continued from previous page)
the identity of the accused is established, or should have been
established by the exercise of
due diligence, through the analysis of deoxyribonucleic acid
(DNA) evidence, if a sufficient
portion of the evidence collected
at the time of the original investigation and tested for DNA is preserved and available for testing
by the accused[.] §775.15(16)
(a)4., Fla. Stat. (2007) (emphasis added). [Footnote omitted.]
Appellant moved to dismiss the
charge, arguing that section
775.15(16)(a) could not be applied
to his case because the child's DNA
[from the sixteen year old victim's
impregnation] was not obtained
during the “original investigation”
within the meaning of the statute.
The trial court denied the motion,
noting that, between 2008 and 2010,
law enforcement was “always exercising due diligence to try and find
[Appellant]; therefore, the investigation, the original investigation
never ceased and it was ongoing.”
* * *
We reject the trial court's conclusion that there was an “original,
ongoing investigation” (emphasis

46

Lake Legal News Aug. 2015

storm—fails to show a basis for
disqualification. Trial judges are
permitted to be aware of events
in their own communities, such
as storms, flooding, construction
projects, and so on. General observations acknowledging such
awareness are insufficient to establish a basis for disqualification, absent a more particularized
demonstration than was shown in
this case. As to the claim that the
trial judge ruled against petitioners on certain evidentiary matters,
it is well-established that a judge's
adverse rulings may not serve as
a basis for disqualification. See
Ault v. State, 53 So. 3d 175, 204
(Fla. 2010); Dep't of Agric. & Consumer Servs. v. Broward Cty., 810

added) sufficient to trigger the extension period of section 775.15(16)
(a)4. We acknowledge that this statute was intended to apply where a
DNA sample was obtained shortly
after the commission of a crime
where the identity of the source of
the DNA is unknown. Here, Appellant was hardly unknown, as he was
named as the child's father on the
birth certificate. Nonetheless, our
decision is dictated by the plain language of the statute and the fact that
no DNA evidence of the crime was
collected during the “original investigation” to preserve for comparison
against an accused and thus trigger
the application of the extension period under section 775.15(16)(a)4.
During the period when police
first learned of the potential lewd
and lascivious behavior until the
time the case was initially declared
“inactive,” the onus was on the police to collect evidence to preserve
for a later match—in this case, the
DNA of the child. DNA evidence
was collected only after Appellant
was located by the investigating
police department upon being arrested for a different charge, well
after the original investigation
had first been declared “inactive.”
* * *
We reverse and vacate Appellant's
conviction and sentence, includ-

So. 2d 1056 (Fla. 1st DCA 2002).
● In Florida Digestive Health Specialists,
LLP et al. v. Ramone E. M.D. et al., 40 Fla.
L. Weekly, D1801b (Fla. App. 2nd Dist.,
July 31, 2015), a medical group moved for
a temporary injunction to prevent a physician from practicing medicine with another
medical group in violation of a partner
professional services agreement. Relying on Fla. Stat. § 542.335, the 2nd DCA
held that it was improper for the trial
court to consider whether the potential
injury to the physician outweighed the
threatened injury to the medical group.
(Section 542.335(1)(g) specifically states
that a court “[s]hall not consider any individualized economic or other hardship that might be caused to the person
against whom enforcement is sought.”) 

ing his designation as a sexual offender, as the extension of the
statute of limitations period under
section 775.15(16)(a) is inapplicable in the instant case. Appellant's prosecution was commenced
over three years after the alleged
crime was first reported and thus
the statute of limitations has run.
Accordingly, we direct Appellant's
immediate discharge with respect
to the charge at issue in this case.
● In deciding Axelis v. State, 40 Fla. L.
Weekly, S423a (Fla. S. Ct., July 9, 2015),
the Florida Supreme Court gave clarity to
several previous appellate court decisions
dealing with actual (versus possible, potential, or theoretical) conflicts of interest:
[W]e consider whether a trial
court is required to obtain a
conflict-of-interest waiver when
criminal codefendants are represented by the same lawyer but
there is no actual conflict of interest between the codefendants.
* * *
To the extent that [various appellate decisions] hold that a waiver is
required in the absence of a determination that an actual conflict of
interest exists, they are inconsistent
with our holding and are disapproved to the extent of the inconsistency. [Emphasis added.] 

Fla. Bar Board Certified
Criminal Trial Law Expert
Qualifications:
I have practiced criminal law in Tavares,
Florida, for 27 years. I am a former Assistant
State Attorney, with supervisory experience
at the juvenile, misdemeanor, felony and postconviction relief levels, including a designation as
Lake County's first sex battery and first careercriminal prosecutor.
My actual jury trial experience ranges from
shoplifting and DUI to capital sexual battery and
first degree murder—and I have stood before
a felony jury an average of twice-a-year for
27 years. In fact, I have quadruple the number
of felony jury trials required for initial Board
Certification.

Contact Info:

Available for a free consultation (“Of Counsel”)
through the Law Office of Zachary J. McCormick,
210 N. Texas Ave., Tavares, Florida. To reach me:

he men and women who make the
Teen Court program feasible are
exemplified through local judge and
attorney volunteers. The aptitude these
volunteers have to quake and rumble
the courtroom has been transported to
the juvenile scale in order to reveal how
close teen offenders came to “the edge
of the wrong side of the legal system.”
Ensuring all members of the courtroom
are maintaining proper protocol, the
Teen Court judges'
obligation is to ulti- (1)
mately steer defendants to the equitable path while
embodying courtroom etiquette. By
doing so, jurors,
attorneys, or any
other teen volunteer can learn this
proper decorum for
future reference.

Teen Court, or any other court situation,
in the future,” says Roy Stevenson, who
works at the law office of personal injury
attorney Brent Miller, in Tavares, Florida.
Judges utilize certain tactics when conversing with defendants through a lecture
or providing advice for the future. It is
pertinent to speak on a juvenile's level,
which may require the judge to drop the
legal jargon. Zachary McCormick, a local
managing attorney, suggests remaining
flexible and listening because being
a
Teen
Court
judge is not a
free pass to “beat
up” on another
person. Notifying
the defendant of
future, felonious
consequences
can cause the
mind's
“autopilot” to kick in and
alert the defendant to the fact
that “something
has gone seriously wrong” if caught again in
another similar problematic situation.

Though it may not
seem so, the main
objective of these
Teen Court judges is not to demoralize
defendants, but to provide a solution.
“I attempt to always leave them with a
plan to prevent them from ever being in “I usually emphasize how they have let
48

Lake Legal News Aug. 2015

their parents / guardians down—that
seems to hit them in the gut in a way that
just lecturing them doesn't,” states Ben
Boylston, a local criminal defense attorney.
Prevention from future improprieties
derives from defendant's recognition of
“the limitations on their own perceived
power. Many times, youth can impart a
sense of invincibility and sometimes this
causes an errant child to forget that there
is a price to be paid for bad behavior,” says
McCormick. Leaving Teen Court a little rattled by the judges may present an acclamatory outcome for circuitous defendants.
Instilling in defendants the comfort of
company in this process will provide hope
for the future after abandoning the devious thoughts associated with violating
the law. Stevenson hopes the embarrassing actions in his own life, and stories he
shares about other's mistakes, display an
optimism for an enhanced tomorrow. In
agreement, Boylston confirms that “Teen
Court presents [an opportunity] to move
on and recover from a poor decision.”

Editor's Note: Connor Jenkins
is a 2015 Eustis High School
graduate, AP Honor's Student,
Girl's State delegate, National
Honor Society member, and
Jefferson Awards member. She
has been involved with the Teen
Court Program in Lake County, Florida, since 2009.
The Teen Court Program is a diversionary program that holds first time juvenile offenders
accountable for their actions while affording
them a second chance through the court system.

McCormick believes Teen Court is an
early lesson for possible future courtroom activities. Attending the program as a youth, he learned effects of
certain cross examination tactics and
reading body language of witnesses or
jurors. Joining Teen Court was a deciding factor for his career as an attorney.
Recent Teen Court volunteer-judges:
(1) Roy Stevenson, (2) Ben Boylston (3) Zach
McCormick

In addition to the defendants, the program leaves an imprint on the judges,
(2)
(3)
providing a different perspective on life.
The judge-volunteers reflect on the noble
sense of responsibility toward the viewing audience, volunteers, and the teenagers that are tried in a less crucial setting,
other than the traditional criminal justice
system. Joining Teen Court around 20012003, Stevenson exclaims, “I am proud that
I get an opportunity to give back some of McCormick states, “I am always happy
what was given to me throughout my life.” to volunteer my evenings to this day, as
a small way of 'returning the favor' so to
A “worthwhile endeavor” for Boylston speak. That and the chance to wear the
is keeping young people interested robe and sit in the 'box seats' of course.”
in the criminal justice system, and
the Teen Court program, which alters Any judges or practicing attorneys
the lives of everyone involved in it. interested in volunteering as a Teen
Court judge are encouraged to contact
As a “laboratory for the legal system,” Stephanie Glass at (352) 742-6511. 
Lake Legal News Aug. 2015

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